Cayuga County District Attorney Jon Budelmann said Tuesday he is going to appeal a judge’s decision to dismiss the murder indictment against David F. McNamara rather than present the case to a grand jury again.

On Tuesday, county Judge Mark Fandrich tossed the indictment ruling that McNamara was not given the opportunity to testify before the grand jury that accused him of killing Katie Socci, his former live-in girlfriend, in June.

In his ruling Fandrich said Budelmann could present evidence in the case to a grand jury again without prejudice.

At issue before Fandrich was whether David Elkovitch, McNamara’s lawyer in an unrelated drug case, notified Budelmann in June that McNamara would possibly want to testify before any grand jury that would hear the murder case.

Elkovitch said he provided adequate notice, Budelmann said he did not.

“A mistake by the defendant or his attorney on the drug case in failing to properly communicate his claimed desire to testify on the homicide case does not equate to any wrongdoing by this office,’’ Budelmann said.

“We believe Judge Fandrich is trying to give the defendant the benefit of the doubt,’’ the prosecutor added.

McNamara, 35, formerly of 129 Wall St., was indicted on a charge of second-degree murder on Oct. 19. He was accused of strangling Socci, a 29-year-old nurse who was the mother of their toddler daughter.

Elkovitch, who was appointed as an assigned counsel to defend McNamara in the murder case, said Budelmann made “a major blunder’’ by not allowing his client to appear before the grand jury last month.

“It’s (McNamara’s) absolute right to testify,’’ Elkovitch said.

Laurie Shanks, a former prosecutor and defense lawyer who teaches at Albany Law School, questioned Budelmann’s decision to not let McNamara go before the grand jury.

“In a case where there is some ambiguity about whether or not the defendant has asserted a constitutional right, then the prosecutor should be cautious and should afford the defendant the right to testify. What would it have hurt in this case,’’ Shanks said.

On June 21, Elkovitch gave written notice to Budelmann that he wanted to be made aware of “any other charges which might be presented to a grand jury’’ while Elkovitch was defending McNamara on the drug charges. On Oct. 23 McNamara was sentenced to five years imprisonment on the drug counts.

Budelmann said he does not believe that June 21 notice from Elkovitch to be binding on his office for a couple reasons. One, the notice appeared to be a blanket request and the grand jury did not hear the case until five months later in October. McNamara was not charged with murder until the indictment was unsealed on Oct. 20.

“Since grand jury proceedings are secret McNamara was not entitled to advance notice of the prosecution,’’ Budelmann said.